EXHIBIT 19
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT (the "Agreement"), dated as of November 18,
1998, is by and between The Xxxx Disney Company, a Delaware corporation
("TWDC"), and Infoseek Corporation, a Deleware corporation ("Holding Company").
WITNESSETH:
WHEREAS, upon the consummation of the transactions described in the
Agreement and Plan of Reorganization, dated as of June 18, 1998 (the "Closing"),
Disney Enterprises, Inc., a wholly-owned subsidiary of TWDC, will own
approximately forty-three percent (43%) of the issued and outstanding shares of
Holding Company common stock;
WHEREAS, following the Closing, one or more members of each of a TWDC
Separate Group (as hereinafter defined) and a Holding Company Group (as
hereinafter defined) may become members of one or more consolidated, combined or
unitary groups ("Consolidated Groups"), which, at TWDC's option, may (or, if
otherwise required by law, will) file one or more consolidated, combined and/or
unitary Tax returns ("Consolidated Returns"); and
WHEREAS, it is the intent and desire of the parties hereto that a
method be established for reimbursing TWDC (or any other entity designated by
TWDC) for the Tax liability allocated to Holding Company pursuant to Section 4
of this Agreement.
NOW THEREFORE, in consideration of the promises, covenants and
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
"Holding Company Group" means, with respect to any Consolidated
Return, Holding Company and all member corporations in which Holding Company
directly or indirectly (including through any other entity) owns stock and which
are included in such Consolidated Return.
"TWDC Group" means, with respect to any Consolidated Return, TWDC
and/or any member corporation in which TWDC directly or indirectly (including
through any other entity) owns stock and which are included in such Consolidated
Return.
"TWDC Separate Group" means, with respect to any Consolidated Return,
all members of the relevant TWDC Group that are included in such Consolidated
Return and that are not also members of any Holding Company Group.
"Tax" means any form of taxation, whenever created or imposed, and
whenever imposed by a national, municipal, governmental, state, federal,
foreign, or other body (a "Taxing Authority"), and without limiting the
generality of the foregoing, shall include any net income, alternative or add-on
minimum tax, gross income, sales, use, ad valorem, gross receipts, value added,
franchise, profits, license, transfer, recording, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall
profit, custom duty, or other tax, government fee or other like assessment or
charge of any kind whatsoever, together with any related interest, penalties, or
other additions to tax, or additional amount imposed by any such Taxing
Authority.
"Tax Attribute" means any net operating loss, net capital loss, excess
charitable contribution, foreign Tax credit, investment Tax credit or other
similar item.
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2. FILING OF CONSOLIDATED RETURNS. At TWDC's option, TWDC (or any other
corporation in which TWDC directly or indirectly owns stock) may file, and
Holding Company agrees to join (and, at the direction of TWDC, to cause any and
all members of any Holding Company Group to join) in any such filing of a
Consolidated Return for any taxable year (or portion thereof) for which such
corporations are permitted or required to file a Consolidated Return.
3. COOPERATION ON CONSOLIDATED RETURN MATTERS. Holding Company (on behalf
of itself and all members of any Holding Company Group) hereby designates TWDC
(or TWDC's designee) as its agent for the purpose of taking any and all action
necessary or incidental to the filing of all Consolidated Returns. Holding
Company agrees to furnish TWDC with any and all information (including, without
limitation, the Holding Company Group's pro-forma consolidated tax returns with
supporting separate company pro-forma tax returns), in the manner and format
requested by TWDC, with respect to any Holding Company Group in order to carry
out the provisions of this Agreement; to cooperate with TWDC in any Tax return
or consent contemplated by this Agreement; to take such action with respect to
Taxes and such Tax returns as TWDC may request, including, without limitation,
the filing of all elections and the filing of all requests for the extension of
time within which to file and/or audit or challenge Tax returns; to cooperate in
connection with any audit or refund claim; and to undertake all of the foregoing
obligations on a timely basis as requested by TWDC. TWDC (or its designee) shall
control the preparation and filing of all Consolidated Returns and all audits,
investigations, actions or proceedings with respect to any matter relating to
any Consolidated Return.
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4. APPORTIONMENT OF TAXES. For each taxable period (or portion
thereof) for which a Consolidated Return is filed pursuant to this Agreement,
Holding Company shall be allocated (on behalf of the Holding Company Group) a
Tax liability equal to the Tax liability that would be imposed if the members of
the Holding Company Group that are included in such Consolidated Return had
filed such a Consolidated Return including solely those members of the Holding
Company Group and/or had filed separate returns, as the case may be, for all
relevant periods; PROVIDED, HOWEVER, that the computation of such allocation
shall be consistent with any positions taken or elections, adjustments or
amendments made by Holding Company in determining its Tax liability, which
positions, elections, adjustments and amendments must be properly supportable by
applicable law.
5. PAYMENT OF TAXES. For each taxable period (or portion thereof)
for which a Consolidated Return is filed pursuant to this Agreement, TWDC shall
prepare or cause to be prepared the Consolidated Returns of the TWDC Group and
shall pay all Taxes reported on each such Consolidated Return to the relevant
Taxing Authority. At least five (5) business days prior to the due date of any
payment any member of the TWDC Group is required to make to any Taxing Authority
of any Taxes due with respect to any Consolidated Return (including, without
limitation, estimated Tax payments, extension Tax payments and Tax payments due
with a Consolidated Return), Holding Company shall pay to TWDC (or any other
entity designated by TWDC) the amount determined under Section 4 of this
Agreement with respect to such Consolidated Return (unless TWDC directs in
writing to Holding Company that Holding Company shall make such payment directly
to any Taxing Authority, in which event Holding Company shall comply with such
request within two (2) business days). In no event shall TWDC or any
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other entity be required to make any payment to Holding Company hereunder based
on (a) the allocation of a negative Tax liability to Holding Company under
Section 4 or (b) the use of any Tax Attribute of any Holding Company Group by
any TWDC Separate Group until or unless Holding Company demonstrates that (i)
such member of the Holding Company Group that generated the attribute has ceased
to be a member of a TWDC Group and (ii) such member could have used that
attribute to reduce its Tax liability on a stand-alone basis under applicable
law at that time.
6. SUBSEQUENT ADJUSTMENTS. If for any taxable period (or portion thereof)
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for which a Consolidated Return is filed pursuant to this Agreement, the Tax
liability (or any component thereof) as reported on such Consolidated Return is
adjusted, including, without limitation, by means of an amended return, a claim
for refund, notification of audit changes, or an audit by the relevant Taxing
Authority, then the liabilities of the TWDC Separate Group, the TWDC Group and
the Holding Company Group shall be recomputed under the relevant sections of
this Agreement to give effect to those adjustments as if such adjustments had
been part of the original determination of the consolidated income Tax
liability. In the case of a refund payable to a member of the TWDC Separate
Group or the Holding Company Group, TWDC (or any other entity designated by
TWDC) or Holding Company, as the case may be, shall make payment to the other of
such group's share of the refund within five (5) business days after the refund
is received by such group. In the case of an increase in Tax liability, Holding
Company shall pay to TWDC (or any other entity designated by TWDC) its share of
such increased Tax liability at least five (5) business days prior to the date
on which the relevant TWDC Group member would expect to pay such Tax liability
to the relevant Taxing Authority.
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If any interest is to be paid as a result of any Tax deficiency with respect to
a Consolidated Return, that interest shall be allocated to each of the TWDC
Separate Group and the Holding Company Group in the ratio that each such group's
positive change in Tax liability bears to the total change in the Tax liability,
but not to exceed the amount of the interest to be paid to the relevant Taxing
Authority. If any interest is to be received as a result of any Tax refund with
respect to a Consolidated Return, that interest shall be allocated to each of
the TWDC Separate Group and the Holding Company Group in the ratio that each
such group's negative change in Tax liability bears to the total change in the
Tax liability, but not to exceed the amount of the interest to be received from
the relevant Taxing Authority. If any penalty is to be paid with respect to a
Consolidated Return as a result of any Tax deficiency, that penalty shall be
allocated to the TWDC Separate Group or the Holding Company Group, as the case
may be, whose income resulted in the imposition of such penalty.
7. OTHER TAX ITEMS AND PRINCIPLES. This Agreement shall not apply with
respect to the carryback of any Tax Attribute generated by a corporation that
ceases to be a member of the Holding Company Group and attributable to a taxable
year beginning after the date hereof in which such member is no longer a member
of the relevant TWDC Group. All computations of payments between members of the
Holding Company Group and the TWDC Separate Group hereunder shall (i) be made by
TWDC, and (ii) be adjusted to take into account any corresponding federal Tax
benefit or Tax detriment (whether or not a federal Consolidated Return is
filed). Interest shall be imposed upon any late payment hereunder at the rate
prescribed by Section 6621(a)(2) of the Internal Revenue Code of 1986, as
amended. Holding Company shall provide all Tax returns of
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or including any member of the Holding Company Group for TWDC's review and
comment at least fifteen days prior to filing.
8. FEES AND EXPENSES. All fees and expenses (including, without
limitation, allocation of internal overhead costs) associated with administering
this Agreement (including, without limitation, preparing and filing such Tax
returns and addressing audit and controversy matters as are described herein)
shall be shared proportionately by TWDC (or any other entity designated by TWDC)
taking into account other relevant members of the TWDC Group and Holding
Company.
9. DISPUTES. Any dispute concerning the interpretation of a Section or an
amount of payment due under this Agreement shall be resolved by a mutually
selected and jointly engaged independent nationally recognized accounting firm,
the fees and expenses of which to be shared equally by the parties, whose
judgement shall be conclusive and binding on the parties.
10. SUCCESSORS. Unless otherwise provided herein, a party's rights and
obligations under this Agreement may not be assigned without the prior written
consent of the other party to this Agreement. This Agreement shall be binding
upon and inure to the benefit of any successor to any party hereto.
11. EXCLUSIVE AGREEMENT. This Agreement embodies the entire understanding
among the parties as to the subject matter hereof, and no change or modification
may be made except in writing by each of the parties.
12. WAIVERS. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
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13. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
14. CHOICE OF LAW; HEADINGS. This Agreement shall be governed by the
internal laws of the State of California. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
INFOSEEK CORPORATION, a Deleware
corporation
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: CEO
THE XXXX DISNEY COMPANY, a Delaware
corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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